Katanga Developments Pty Limited v Bookarelli Pty Limited [2013] NSWDC 237

District Court New South Wales

Medium Neutral Citation: Katanga Developments Pty Limited v Bookarelli Pty Limited [2013] NSWDC 237 Hearing dates: 6 September 2013 Decision date: 09 September 2013 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: Upon the plaintiff giving the court the usual undertaking as to damages, the court orders: (1) Until further order: (a) Keith Crawford, in his capacity as deed administrator of ION Ltd (subject to Deed of Company Arrangement) (ACN 009 106 272) ("the Deed Administrator"), be ordered to provide the plaintiff (through its solicitors on the record): (i) 5 days prior written notice of any distribution of dividend payments to be made to the second defendant in accordance with authorities provided to the Deed Administrator by the ION DOCA Group shareholders listed in amended schedule B contained in annexure F to the affidavit of Sally Webber sworn 6 September 2013 ("Amended Schedule B"); (ii) a schedule indicating which shareholders are to be paid and the total amounts to be paid; and (b) the second defendant be restrained from disbursing or otherwise dealing with 25 per cent of any dividend distributions received from the Deed Administrator in respect of shareholders listed in Amended Schedule B, save that the second defendant is to hold those funds (that is, the relevant 25 per cent) separately in trust. (2) Until further order the first defendant must not take any steps to alter the direction to pay in any authorities provided to the Deed Administrator by the shareholders listed in Amended Schedule B. (3) I direct that the second defendant notify the plaintiff once per month of the total amount held separately in trust in accordance with order 1(b). (4) The plaintiff's costs of the motion, including the costs of the Deed Administrator (as agreed with the defendants or as assessed), be the plaintiff's costs in the proceedings. (5) Grant liberty to apply on 3 days' notice in relation to any matter arising in relation to these orders. Catchwords: INJUNCTION - deed - agreement - entitlement to part of dividend distribution held by solicitor - non-payment - solicitor restrained - "fund" - "good arguable case" - risk of dissipation of assets - obligations after termination - balance of convenience - security for usual undertaking - costs Legislation Cited: Civil Procedure Act 2005, s 90 Legal Profession Act 2004, s 255 Uniform Civil Procedure Rules 2005, r 25.3, r 25.14, r 42.1 Cases Cited: Cardile v LED Builders Pty Ltd [1999] HCA 18 Frigo v Culhaci [1998] NSWCA 88 Newcastle City Council v Caverstock Group Pty Ltd [2008] NSWCA 249 Resort Hotels Management Pty Ltd v Resort Hotels of Australia Pty Ltd (1991) 22 NSWLR 730 Samimi v Seyedabadi; Seyedabadi v Samimi [2013] NSWCA 279 Tagget v Sexton [2009] NSWCA 91 Category: Interlocutory applications Parties: Katanga Developments Pty Limited (plaintiff) Bookarelli Pty Limited (first defendant) Marcel Joukador trading as Thomas Booler & Co (second defendant) Representation: Ms A Munro (plaintiff) Mr M R Gracie with Mr R Raffell (first defendant) Mr D M Loewenstein (second defendant) Cordato Partners (plaintiff) Margiotta Solicitors and Attorneys (first defendant) Robert Balzola & Associates (Legal) (second defendant) Allens (third party respondent to notice of motion (deed administrator)) File Number(s): 2012/105213 Publication restriction: No